Cato V, Part XXIV: The Same Causes, contd.

The other major complicating factor which the Jefferson Administration was forced to confront while pursuing the purchase and annexation of Louisiana in 1803 was very much related to the constitutional queries discussed in the previous entry in this series. At the same time that the text of the United States Constitution was more or less mute as to the ability of Congress and/or the President to create a jurisdiction within the American republic in which the basic legal assumptions underlying said document did not apply, it was also conspicuously silent as to the manner by which wholly new territory was to be added to the union of states. There was no question as to how such land might be governed – the creation of the aforementioned Northwest Territory in 1787 served as a durable precedent. And the Framers of the Constitution most definitely envisioned that more than the original thirteen states would eventually become a part of the American republic. Indeed, they devoted an entire section of Article IV to codifying exactly this assumption. “New States may be admitted by the Congress into this Union,” it read,

But no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Needful though such a clarification may have been, however, nowhere was it stated explicitly how the territory from which these new states were to be formed would find its way into the possession of the United States of America.

Certain possibilities definitely presented themselves at the time that the Constitution was being drafted. Vermont, for example, though an independent republic in and of itself, was always intended by its founders to be the fourteenth state in the American republic. Indeed, it would almost certainly have acceded during the 1780s had it not been for a lingering territorial dispute between Vermont and the state of New York. The District of Maine, then governed by Massachusetts, and the District of Kentucky, then governed by Virginia, were also held to be likely candidates for separate statehood, provided – as the cited text explains – that the relevant state government granted their consent. And then there was the Northwest Territory, formed from lands previously claimed by a number of states and ceded to the authority of Congress over the course of the 1780s. The authorizing legislation, the Northwest Ordinance, made explicit provision for the creation of new states out of the ceded land claims – not less than three or more than five, each to be admitted upon reaching sixty-thousand inhabitants – the first of which was Ohio in 1803. Common to all of these prospects, of course – save for Vermont – is that they each fell within the boundaries of the American republic as it existed at the time that the Constitution was written and adopted. One might even extent this claim to Vermont if the government of New York was to be believed. Four states acceded to the Union between 1789 and 1803 – being, in order, Vermont, Kentucky, Tennessee, and Ohio – but none of them were formed out of territory that had previously been foreign to the American republic and its people. The Framers, it seemed, never envisioned such a thing – or if they did, they failed to include any language in the text of the Constitution that might have clarified their intentions. More to the point, however, such an outcome had never occurred.

By seeking, therefore, to buy foreign territory for the purpose of creating new states, the Jefferson Administration was by necessity striking out into a constitutional unknown. The President, for his part, was acutely aware of this fact, and worried over the potential consequences of exceeding the authority of his office. Perhaps the Chief Executive and the Senate couldn’t increase the size of the United States by buying land from foreigners. The text of the Constitution did not say that they could, and Jefferson had built the Democratic-Republican on the principle of adhering only to what was written therein rather than interpreting freely based on what the situation called for. Certainly, he was in favor of annexing Louisiana to the American republic. Not only would such an outcome have eliminated a potential threat to the peace and security of the United States by finally dislodging the French from North America, but it would also have opened a vast swath of land to American settlement, thus paving the way for the establishment of a community of property-owning yeoman farmers better suited – in Jefferson’s opinion – to the responsibilities of republican government than the urban merchants and artisans that dominated the Northeast. But was it right to pursue such a thing if it meant violating the terms of the Constitution? Were the benefits to be accrued worth the damage that might be done? Jefferson was unsure, and even contemplated seeking an amendment to the Constitution clarifying the means by which treaties could be used to add to the territory of the United States of America. The ostensibly time-sensitive nature of the venture spurred him to hasty action, however, and he ultimately decided to proceed in the hope that the no one drew attention to the fact that the whole enterprise rested on shaky constitutional ground.

In the end, Jefferson got most of what he wanted. The Senate rapidly complied with the President’s wishes, ratifying the purchase treaty and thus enshrining its terms into law. But while this satisfied the outstanding legal requirement which Jefferson was obliged to fulfill, there was yet one more procedural hurdle the venture would have to find a way of surmounting. The House of Representatives, being the sole body responsible for allocating funds from the Treasury, would need to approve of the purchase price for Louisiana before the agreed-upon sum could be paid. In theory, this should not have presented much of a problem. Not only had the behavior of the Washington Administration during the Jay Treaty debate set a precedent for the supremacy of the treaty-making powers of the President and the Senate, but the Democratic-Republicans held a two-thirds majority in the House following the midterm elections of 1802. In practice, however, enough bipartisan support existed in that selfsame body for the relevant funding measure to come surprisingly near to formal rejection. The Federalists, of course, were opposed on all counts. Paying such a large sum of money to France would only serve to antagonize Great Britain, they said; the price was too high, they said; the Democratic-Republicans would have screamed bloody murder if the Washington Administration had tried the same thing, they said. But while these kinds of objections carried little water with the Democratic-Republican majority, certain members thereof did find it difficult to justify the expansion of executive authority on which the purchase of Louisiana appeared to depend.

The invocation by Jefferson’s supporters in the House of the “Necessary and Proper” clause likely did much to perpetuate this cleavage. That same line of text – found in Article I, Section 8: “The Congress shall have Power [...] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States” – had been deployed by the Washington Administration and the Adams Administration to justify a whole host of policies to which the Democratic-Republicans vehemently objected. The fact that some of the same people who had labeled the Federalists as tyrants when they used the Necessary and Proper clause to defend the establishment of a national bank in the early 1790s were now employing it in the same manner to push through a policy outcome that they desired was accordingly a very understandable source of internal dissension. Symbolic of the evident shift in opinion which inspired this dispute were the arguments put forward by people like James Madison (1751-1836) and Albert Gallatin (1761-1849) in favor of the purchase.

Madison, despite having strongly advocated for the creation of an empowered, centralized national government in the 1780s, had become a strict-constructionist in the 1790s and served as one of the primary founders of Democratic-Republicanism and a strenuous supporter of the rights of the states. As a Congressman, he oversaw the drafting and passage of the Bill of Rights, the substance of which placed significant limits on the power of the federal government. And as a private citizen, he had argued that the states had the right – indeed, the responsibility – to monitor the behavior of federal authorities and disclaim any laws or actions which they held to be unconstitutional. But when asked, as Jefferson’s Secretary of State, whether the President intended to pursue an amendment to the Constitution in order to clear up the legal vagaries surrounding the Louisiana Purchase by Massachusetts Senator John Quincy Adams (1767-1848), his response was comparatively equivocal. It may in fact have been the case, he admitted, that the authority conferred by Constitution on the President and the Senate did not include the ability to purchase and incorporate foreign territory. That being said, he continued, it was important to consider, “The magnitude of the object,” and have faith in, “The candor of the country,” to authorize such a venture if that is what the majority desired. Power, it seemed, had somewhat softened Madison’s resolve. In opposition he had been ardently convinced of the need to interpret the Constitution as conservatively as possible as a shield against tyranny – a belief which just so happened to clash with the policy program of his Federalist adversaries. But as the second-in-command of the Executive Branch he appeared suddenly amenable to the notion that sometimes the “greater good” – as he defined it, of course – outweighed even the most deeply-held principles.

If James Madison was the Jefferson Administration’s second-in-command, Albert Gallatin was most definitely its able and tireless quartermaster. Born in Geneva in the early 1760s, Gallatin emigrated to the United States in the 1780s and developed a reputation over the course of the 1790s as a rising star in the Democratic-Republican movement. He was scrupulous, hardworking, and keenly intelligent, and the positions he adopted during his time as a Congressmen from Pennsylvania did much to demonstrate his dependability to the likes of Jefferson and Madison. During the Whiskey Rebellion, for instance, he expressed his sympathy for the rebels and criticized the Washington Administration for being overly aggressive in its response. Later, during the so-called “Quasi-War” between the United States and Revolutionary France – during which French and American naval vessels frequently clashed and fears of a French invasion seemed to grip the American people – he likewise criticized President Adams for his military spending efforts and came out strongly against the passage of the aforementioned Alien and Sedition Acts. Finally, having been rewarded for his enthusiasm and his service by being named to the post of Secretary of the Treasury in the Jefferson Administration – a position to which he was perfectly suited, being an unparalleled expect in all matters financial – he set about putting into action his previous critiques of excessive centralization by drastically lowering federal taxation, eliminating the national debt, and cutting back on military expenditures. In spite of the ideological consistency that this kind of behavior would seem to indicate, however, Gallatin’s response to the President Jefferson’s concerns surrounding the Louisiana Purchase demonstrated a willingness on the part of the former to deviate from established principles when the situation seemed to call for it. Speaking to the supposed need for a constitutional amendment to explicitly grant the President the power to purchase territory to be added to the union of states, Gallatin purportedly assured the leader of his party that such a course of action wasn’t in the least bit necessary. If the power to buy land by treaty wasn’t intended by the Founders to be included in the prerogatives granted to the President by the text of Article II, he reasoned, then the text in question would have said so. Since it didn’t, and since the aforementioned Supremacy Clause gave treaties negotiated by the President and approved by the Senate the full force of law, there should have been no question of the right of President Jefferson to purchase the territory of Louisiana and to dispose of it as he saw fit.

What is remarkable about the arguments put forward by James Madison and Albert Gallatin in favor of the purchase of Louisiana is the degree to which they plainly contradicted the sentiments which these same men had been expressing for a number of years prior. Gallatin, as discussed above, had been an ardent and conscientious believer in the manifold dangers supposedly inherent in large, active, centralized governments. He had railed against administrative overreach as a Congressmen from Pennsylvania, marshaled what resources he could to oppose the excessive use of police powers as the leader of the Democratic-Republicans in the House, and did everything in his authority as Secretary of the Treasury to shrink the scope and the sway of federal institutions. But when presented with the opportunity to score an unparalleled victory for the version of his nation’s future which he and his cohorts most dearly sought to promote, Gallatin’s scruples fairly inverted themselves. Though it would entail a tremendous assumption of executive power and entail the direct federal administration of a territory as large again as the entire union of states, Gallatin was resolutely in favor of the Louisiana Purchase.

Just so, while Madison had previously declared in the Virginia Resolutions (1798) that one of the reasons his home state could not consent to enforce the terms of the Alien Act was because it claimed to exercise, “A power no where delegated to the federal government,” a thing objectionable to Virginians because of their, “Scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness [,]” by 1803 he seemed very much to have changed his tune. The ability to purchase and incorporate foreign territory into the United States of America was “a power no where delegated to the federal government,” of course, as anything like a “scrupulous fidelity” to the constitution would have shown. But unlike in 1798, at which time Madison and his fellow Democratic-Republicans were forced to attack the reigning Federalists on principle from a position of practical weakness, he now had power as a substitute for conviction. Yes, it was true that the Constitution didn’t grant the President the explicit power to buy land by treaty. And yes, the Democratic-Republicans had nearly torn their hair out when the Federalist claimed the right to deport certain individuals by arguing that the Necessary and Proper clause justified their actions. But the Louisiana Purchase was a different situation entirely. The Federalists had been ravening warmongers in the 1790s who wanted nothing more than to stoke an unnecessary war with France. True, a majority of the elected representatives of the American people as seated in Congress had voted in favor of the Alien Act, but that by no means indicated the existence of popular support for the same. How could the people have honestly supported something so inimical to their own liberty? It was quite frankly inconceivable. The purchase and incorporation of Louisiana, on the other hand, was plainly to the benefit of the American republic as a whole. There were no ulterior motives behind it, no advantage to be derived by the Democratic-Republicans alone. It was, to put it simply, an unambiguous good. And though the plain text of the Constitution may not have authorized such a course of action on the part of the President and the Senate, this should by no means have been taken as a denial of its rightness. The American people were in favor – or if not yet, they would be – and the entire purpose of government was to serve the needs of the people. Aspects of government which threatened to stymie this objective were accordingly of no consequence.

Jefferson, as aforementioned, was duly convinced by these claims – a further indication of how far the Democratic-Republicans had come since gaining power – and so, in time, were his fellow partisans in Congress. As discussed above, though the House of Representatives seemed generally less inclined than the Senate had been to approve the terms of the Louisiana purchase treaty – or rather to agree to fund the negotiated purchase price – the end result was not in doubt for very long. On the first procedural vote, with a quorum of one hundred and sixteen Congressmen, the measure was approved by a margin of fifty-nine to fifty-seven. This was not a promising result, to be sure, given that the Democratic-Republicans held well over sixty percent of the seats in the House. It was clear that there were a number of legislators in Jefferson’s own faction who were unsure enough of the President’s actions to vote against them at the first opportunity. Fortunately for Jefferson, this first vote was as near as the Louisiana Purchase ever came to formal rejection. The two subsequent House votes returned far more comfortable margins in favor, and by December of 1803 the Stars and Stripes was flying over the city of New Orleans. The following October, the region was officially divided into the Orleans Territory and the Louisiana Territory, the former of which acceded as the state of Louisiana in 1812. The Louisiana Territory was renamed the Missouri Territory in June of that same year – so as to avoid confusion, no doubt – after which time ten states were formed out of its land area between the years 1821 (Missouri) and 1868 (Wyoming).

Impressive though such an outcome may well be, the men immediately responsible for the purchase of Louisiana from Napoleonic France cannot fairly claim sole and exclusive credit for the service they had seeming rendered to the whole of the American republic. Jefferson and his cohorts, though undeniably a canny bunch, had really only been following the example set forth by the preceding Washington and Adams administrations. When faced with situations in which it was unclear exactly what powers the executive branch did or didn’t possess, the ruling Federalists in both instances came to the same basic conclusion. Namely, when a desirable outcome was in sight, they assumed that the power they needed was there for the taking and acted accordingly and with confidence. Washington followed this course exactly when confronted with an apparent insurrection on the nation’s western frontier, and again when he and his supporters sought to enforce the terms of a widely unpopular treaty. And the Adams Administration did much the same when war with France seemed inevitable and the nation’s French-born residents became suddenly a source of potential subversion. Jefferson and his allies had naturally decried these actions at the time, believing them to contain the seeds of the destruction of American liberty. But when they finally found themselves sitting where Washington and Adams had sat, possessed of manifold opportunities to see accomplished the dreams that they had nurtured through years in opposition, the Democratic-Republicans and their stalwart leader arguably fell prey to the same temptation that had so effectively swayed their predecessors.

This was a natural enough thing, of course. When victory seems so near at hand, and when all that is required to achieve it is the merest compromise of one’s convictions, who among us hasn’t given in at least once in our lives? And it wasn’t as though Jefferson and his allies didn’t have the strength of precedent on their side. They may not have agreed, on principle, with the expansion of executive power wrought by the Washington and Adams administrations during their time in office, but it was plain enough by 1803 that the American people had made their peace with a more powerful version of the presidency than had originally been sold to them in the 1780s. Granted, the Federalists had been voted out of power in 1800, due at least in part to their handling of the Quasi-War and the passage of the Alien and Sedition Acts. But that was all that happened. People didn’t storm Philadelphia in 1794 when Washington federalized the state militias, or mob John Adams’ home in Massachusetts when he signed into law the aforementioned legislation. In part this came down to tactics, the Democratic-Republicans having resolved to pursue political remediation rather than the kind of extra-legal solutions popular mobilization might have wrought. But whatever their rationale, the result was undeniably precedential. Not only had the actions taken by the Washington and Adams administrations shown the American people just how powerful the office of President could be in practice, but the American people had in turn shown the Democratic-Republicans the extent to which they were willing to accept this power as part and parcel of how government under the Constitution functioned. Jefferson himself might not have been particularly comfortable with what this implied – a fact evidenced by his initial pursuit of a constitutional amendment in 1803 – but even he was eventually convinced to give way to what his allies assured him was the most prudent course of action. The American people, they explained, would absolutely tolerate an expansive reading of executive authority. They had in the past, after all. And they would again many times more in the future.

Cato V, Part XXIII: The Same Causes, contd.

            George Washington was no Julius Caesar; on this subject there would seem to be little cause for debate. Popular though he was, connected to the military though he was, and decisive though he was, Washington never showed the slightest intention to use the legal and practical powers at his disposal as President to transform the American republic into a functional autocracy. He served two terms as in office – the second, it bears noting, under some degree of protest – weathered the crises that came his way as best as he was able, and then retired to a life of peace and quietude on his Virginia plantation. Less than three years later he was dead, having taken ill rather suddenly at the age of sixty-seven, and any lingering threat which he may have posed to the stability of the American system of government was effectively laid to rest with him. But while Washington’s style of leadership may have diverged from that of Caesar in the way that they respectively conceived of their personal relationship to the state – Washington seeking to avoid being thought of as indispensable, Caesar seeking almost exactly the opposite – both men undeniably changed the way that their respective cultures understood political authority and executive power in ways that continued to reverberate for centuries after each man had perished. Caesar, by forcing the disparate legal and cultural institutions of the Roman Republic to submit to his authority, showed the Roman people that it was possible for a single person to rule them without immediately resorting to cruelty and dissipation. It was an impactful lesson, paving the way as it did for an entire lineage of emperors claiming the mantle that Caesar had wrought, and one which the Roman people seemed to learn fairly quickly. Not all of Caesar’s successors were possessed of his competence, charisma, or cunning, of course – indeed, most of them emphatically were not. But all of them, to a man, benefited from the political precedents he had set and the stamp he had left on Roman law and culture.

            Washington, though generally a far less self-interested figure than Caesar, nonetheless bequeathed a similar legacy to the American people as Caesar had to his fellow Romans. Few Presidents were ever going to be as popular, to be sure, or as widely mythologized in the centuries following their death. Washington, in that sense, was more or less untouchable. But what subsequent officeholders could do to at least approach the summit of the man’s soaring reputation was to make use of executive authority in the way that he had shown them. This wasn’t just a matter of reinforcing the precedents that Washington had set, of course. Not every President would have cause to negotiate treaties or call out the state militias, and seeking out such opportunities would assuredly have been tantamount to courting disaster. Rather, it was a matter of style, confidence. Washington’s approach to the presidency – influenced, in no small part, by the advice and encouragement of Federalist partisans like Alexander Hamilton – was to consistently adopt the position that if the executive branch appeared to possess authority in a given area of policy or law then that power was more or less absolute. This was the attitude of the Washington Administration during the Whiskey Rebellion (1794) when it federalized the state militias in response to a purported insurrection in Western Pennsylvania. It was also the tack that Washington adopted when the House of Representatives threatened to withhold the funding necessary to enforce the terms of the Jay Treaty (1795). In both cases, when confronted with a set of circumstances in which it was not entirely clear whether the chief executive, the national legislature, or the states were possessed of superior authority, the first President of the United States acted in such a way as to make it clear to all and sundry that his position – being the sole representative of the American people as a whole – almost always entitled him to the stronger claim to action.

                   

            Not all of Washington’s fellow Americans agreed with how this claimed preeminence was deployed, of course, with the Democratic-Republicans in particular arguing that the national executive was never intended to be the dominant branch of the government described in the text of the Constitution. Nonetheless, it is remarkable just how many of Washington’s successors – regardless of the principles they claimed to possess – seemed unable to stop themselves from following in his footsteps upon being elected to the office of which he was the inaugural holder. Consider, by way of example, the presidency of Thomas Jefferson, founder and ideological wellspring of the aforementioned Democratic-Republicans. After serving as Secretary of State in Washington’s first cabinet between 1790 and 1793, Jefferson spent the latter half of the decade railing against what he and his supporters perceived to be the latent monarchism of Alexander Hamilton and his fellow Federalists while steadily building a socio-political movement of his own. The resulting Democratic-Republican faction combined a number of philosophical streams that had risen and fallen over the preceding decade – the Anti-Federalism of the Ratification Debate, the anti-tax protests of 1792-94, and the pro-French, anti-Jay Treaty agitation of 1795 – into a proto-party organization and an ideology whose principle tenets were pro-state and anti-centralization, pro-French and anti-British, and pro-trade and anti-protectionism. As Jefferson and his ally and confidant James Madison described it, the Washington Administration had transformed the United States into a guarantor of loans rather than a guarantor of freedom; an instrument of speculation where wealthy Americans and wealthy foreigners could enrich themselves yet further at the behest of the farmers, artisans, and laborers who actually tilled the soil and toiled in workshops. What the American people needed to do, they went on to explain, to reclaim the promise embodied in the late Revolution was reject the elitism of the Federalists, their promise of profits, security, and order, and embrace the Democratic-Republican platform of individual rights, states rights, and an exceedingly limited central government.

            Amazingly enough, Jefferson continued to work towards the eventual triumph of Democratic-Republicanism even after his election as Vice-President under the Federalist John Adams in 1796. Indeed, it was in 1798, while serving as Adams’ successor-in-waiting, that he drafted the infamous Kentucky Resolutions in response to the passage of the aforementioned Alien and Sedition Acts, perhaps the first coherent articulation in the history of the United States of the concept that a state could unilaterally ignore or “nullify” a federal law which its government found to be unconstitutional. In spite of the limited success enjoyed by Jefferson and his supporters in the meantime, however – not only had the Federalists won the Presidential Election of 1796, but they maintained control of both houses of Congress following elections in 1797 and 1799 – the organizational prowess of certain of Jefferson’s allies and the mounting unpopularity of the Adams Administration would soon enough bear fruit. The Election of 1800 was not the unadulterated triumph that the Democratic-Republican faithful had doubtless long envisioned – with a split vote between Jefferson and nominal ally Aaron Burr (1756-1836) requiring a tumultuous contingent election in the lame-duck House of Representatives – but the final result was an inarguable rejection of the Federalist program. Not only were Jefferson and Burr elected as President and Vice-President, respectively, but the Democratic-Republicans gained control of the House and the Senate, resulting in the first total transfer of power from one party to another in the history of the United States government since the adoption of the Constitution one decade prior. Now free to transform his principles into policy – save, perhaps, for the potential intervention of the Federalist-dominated courts – Jefferson swiftly set about dismantling the coercive, activist state which had long accused the Federalists of constructing. The “Empire of Liberty” which he had long envisioned was well and finally at hand.

            As ever seems to be the case, however, Jefferson evidently failed to consider that he and his supporters might conceivably develop a very different attitude towards the authority against which they had railed for so long once that authority was placed in their hands. Executive power naturally looked very threatening when deployed to accomplish things with which the Democratic-Republicans disagreed. Enforcing the collection of unpopular taxes, for example, or sidelining Congress in order to implement an unpopular treaty. But if the opportunity arose to achieve a major Democratic-Republican objective through the use of the same Executive Branch prerogatives? Well, perhaps in that case it made less sense to stand on principle and more sense to simply make use of the tools that were at one’s disposal. President Jefferson’s actions during the events surrounding the Louisiana Purchase (1803) speak very much to this conclusion, grounded as they were upon the same style of executive leadership that he had earlier decried when deployed by Washington and the Federalists.

The objective of Jefferson’s concomitant negotiations with Napoleonic France, of course, was the purchase by the United States of the French territory of Louisiana for the purpose of opening up this vast, potentially fertile, and sparsely populated region to American settlement. Or at least that’s what the objective ultimately became. Initially seeking an end to long-running tensions between the United States and whichever European colonial power governed the territory immediately beyond the Mississippi River, President Jefferson sent envoys Robert Livingston (1746-1813) and James Monroe (1758-1831) to Paris upon receiving word of the transfer of Spanish “Luisiana” back to France for the purpose of offering to buy only the city of New Orleans. During the years of Spanish governance between 1762 and 1801, the inhabitants of the states and territories on the American republic’s western frontier had often struggled at the behest of Spanish authorities who denying American access to the Mississippi and the port facilities at New Orleans, or allowed access, or required conditions, or required payment. Since the newly-elected Jefferson had gained office thanks in no small part to the support of westerners in states like Kentucky and Tennessee, he was naturally eager to bring an end to the economic turmoil that these changing policies had often wrought, and was likely also sensitive to the potential opportunity presented by the repossession of Louisiana by Napoleonic France.

Unlike the Spanish, who had been quite sensitive of their sovereignty over the territory in question, Napoleon seemed far more invested in maintaining and expanding his authority in Europe than in trying to export that authority to the North American interior. Granted, there were diplomatic rumblings that French authorities may have intended to use Louisiana as a source of staple goods with which to supply their sugar-rich possessions in the Caribbean. That said, the viability of such a plan largely relied on Napoleon successfully quelling the slave revolt then tearing through the island of Sainte-Domingue, and circa 1802 this was far from a certainty. Jefferson accordingly proceeded with a certain degree of haste. If the French were in need of funds to continue their war with most the rest of Europe, and if the reassertion of French authority in the West Indies was still something of an open question, perhaps it would be possible for the United States to purchase just New Orleans and its environs for a suitably impressive price while leaving the rest of Louisiana for Napoleon to dispose of as he would. Though President Jefferson was reportedly uncomfortable with even this modest proposal – he felt disinclined to substantiate French claims to American territory by agreeing to purchase any part of Louisiana, and further wondered at the constitutionality of the federal government unilaterally expanding American territory –the potentially time-sensitive nature of the circumstances at hand prompted him to action.

Fortunately for Jefferson, French fortunes in the Western hemisphere rather quickly took a turn for the worst. At about the same time that the American envoys arrived in Paris to make their offer of ten million dollars for the transfer of New Orleans to American control in the spring of 1803, French authorities had finally come to accept that the recapture of the aforementioned sugar colony of Sainte-Domingue was no longer feasible. This being the case, it accordingly no longer appeared necessary for a French presence to be maintained in North America, leading Napoleon to instruct his emissaries to offer the American delegation the whole of Louisiana for a mere fifteen million dollars. Livingston was understandably taken aback by the offer, between the sheer size of what he was now being asked to purchase and the shockingly low price of three cents per acre, and was unsure, in the immediate, how he should have responded. President Jefferson had only authorized him to purchase the city of New Orleans, and only for a maximum of ten million dollars. But five million dollars more for a parcel of land that would instantly double the size of the United States? Surely, he reasoned, Jefferson would see the wisdom in accepting such a proposal. And what if the French rescinded the offer? What if they refused to sell New Orleans on its own? Livingston had been instructed to secure the purchase of the valuable port city and buying all of Louisiana would certainly have accomplished that. After less then two weeks of contemplation – April 11^th to April 30^th – the American delegation ultimately accepted the French proposal. The resulting purchase treaty was announced on July 4^th, 1803 and arrived in Washington, D.C. ten days later.

It was at this point in the saga of the Louisiana Purchase that the Jefferson Administration was made to confront and reconsider its own collective understanding of the nature of executive power. When all that the United States was attempting to purchase was the city of New Orleans and its immediate environs, the potential hurdles attending its integration into the American republic doubtless seemed quite minor. Congress already claimed sovereignty over the region immediately to the east along the coast of the Gulf of Mexico, administering it as the Mississippi Territory since 1798, and it would doubtless have been a relatively trivial matter to graft this new cession onto the same. The federal government had established its ability to organize and govern non-state lands as far back as the 1780s with the creation of the Northwest Territory in the Great Lakes region, and the addition of a relatively small strip of sea coast to one of its existing administrative units would likely have raised few eyebrows. But Louisiana, at some eight hundred thousand square miles in total, was not a relatively small strip of coastline. On the contrary, it was a vast expanse of land roughly equal in size to the whole of the contemporary United States, and its annexation would accordingly place the federal government in direct control of a tremendous amount of land and resources. For a faction such as the Democratic-Republicans, whose origins lay in a categorical rejection of arbitrary executive power, the consequent need to govern Louisiana without a representative legislature or elected magistrates understandably presented something of a quandary. Eager though Jefferson and his supporters most certainly were to provide for the growth and expansion of agriculture in the United States of America – as opposed, say, to the mercantilism that seemed to dominate many of the states on the Atlantic seaboard – they were unsure whether or not this objective could be achieved – or indeed should be achieved – if it meant expanding the reach of the federal government in the process. At least two major factors complicated the resulting discussions.

For one thing, there could be no denying the fact that the inhabitants of French Louisiana – such as they were in 1803 – were very unlike those of the contemporary American republic. Whereas most American spoke English, adhered to some form of Protestant Christianity, and were familiar with the English style of Common Law jurisprudence, the settled residents of Louisiana – that is to say, those who were not members of one of the many native communities who lived within its borders – mainly spoke French or Spanish, were predominantly members of the Roman Catholic faith, and were accustomed to the Roman-derived Civil Law tradition common in contemporary France and Spain. Not only that, but no small number of the inhabitants of the city of New Orleans were members of the gens de couleur community, being free people of total or partial African ancestry who owned property and businesses and were possessed of the same basic legal rights as the majority of their countrymen. But while the terms of the treaty authorizing the transfer of Louisiana from French to American control mandated that,

The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible according to the principles of the federal Constitution to the enjoyment of all these rights, advantages and immunities of citizens of the United States, and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess [,]

The sum of the differences named above – particularly in light of the contemporary state of American racial politics – presented a significant potential hindrance to the achievement of the same. 

            From the perspective of the Jefferson Administration – and indeed from that of most Americans of the era – the existing inhabitants of Louisiana were not very well suited to the duties and responsibilities which they believed were inherent to the possession of American citizenship. The Louisianais were used to being subjected to arbitrary authority, had no taste for or familiarity with republican, citizen-led government, and were almost completely unfamiliar with the basic principles of Anglo-American style Common Law jurisprudence. While not necessarily prepared to shirk their nation’s responsibility to incorporate these people into the citizen population of the United States of America, members of the reigning Democratic-Republican faction and the opposition Federalists accordingly tended to agree that the resulting process was bound to be a lengthy one. The people of Louisiana would need to be taught the principles of good citizenship, the fundamentals of the American legal system, and even the basics of the English language, and all before they could be permitted to form a legislature or elect their own executive. It would have been impossible to say for certain how long this would take, though surely no one doubted that the period was best measured in years, if not decades. And in the meantime? Well, in the meantime two things would have to happen which most Americans were sure to find distasteful.

First, an administrative framework would have to be established – likely on the model of the aforementioned Northwest Territory – by which the federal government would legally oversee the region in question. Under the terms of such an arrangement, it would have been left to the President to appoint a Governor, a Secretary, and a set of justices to administer the territorial court system. The inhabitants would normally have chosen representatives from among themselves to serve in the lower house of a territorial legislature, as well as a delegate to speak on their behalf in Congress, but given the aforementioned “unsuitability” of the existing residents of Louisiana to the task of self-government this would seem to have been an unlikely outcome in the immediate. In consequence, until such time as the federal government decided that the residents of the relevant organized territory had become fully acclimated to the American style of republican government – a decision authorities would arrive at presumably based on their own criteria – the Executive Branch in particular would possess virtually unchecked power over what transpired therein. The potential effects of such an arrangement were troubling, to say the least. In time, for example, wasn’t it possible for the American chief executive to become so accustomed to exercising near-absolute power in Louisiana that they might refuse to give it up? And in the meantime, was it entirely reasonable for the American people to expect their government to behave arbitrarily in one part of the nation and responsibly in another without the impulses conditioned by the former ever bleeding over into the latter? Perhaps future presidents, having felt the extent of their powers in Louisiana, would come to resent the limits placed on the same in the rest of the United States. Surely this would not have been a healthy outcome for the perpetuation of American liberty, regardless of the resources or opportunities the possession of Louisiana might afford to the American people.

And then there was the other implication of the cited clause of the relevant purchase treaty, the consequences of which may have been more troubling still. Until such time as the existing inhabitants of the territory could be, “Incorporated in the Union of the United States,” the treaty stated, the federal government was bound to ensure that the individuals in question were, “Maintained and protected in the free enjoyment of their liberty, property and the Religion which they profess [.]” As it was more or less a given that the “incorporation” of the Louisianais into the general citizenry of the United States of America would not be completed until some time after the transfer of Louisiana to American control, this meant that for an indefinite period the territory would continue to be governed according to the laws and customs familiar to its inhabitants. Civil law, then, would continue to form the basis of the territorial legal system, and free people of color would continue to have their property rights recognized and protected. Naturally this would be met by the Louisianais themselves with pleasure and relief, providing, as it was bound to, some degree of stability while their adjusted to their changing circumstances. But how were the inhabitants of the rest of the United States supposed to interpret such an act? English-derived Common Law formed the basis of understanding for most of what was written in the United States Constitution. Trial by jury, habeas corpus, and the entire court system of the American republic were all deeply rooted in the Common Law tradition, and it was consequently a subject of both comfort and agitation that the principles of the Common Law would continue to apply no matter where in the union of states a given citizen chose to reside. But what if someone from Virginia, say, or Georgia decided to migrate into the newly acquired Louisiana? Though they would not have left the confines of the American republic, they would nonetheless find themselves in a territory possessed of an altogether alien system of laws. Would they continue to be guaranteed a jury trial, or the right to be informed of the reasons for their detention, simply because of their American citizenship, or would the legal procedures of Louisiana take precedence? If civil law was to form the basis of the justice system, would the Constitution – the text of which explicitly guarantees the rights of habeas corpus and trial by jury – even apply? Was it possible for the President and the Senate – in light of the authority conferred on them to make such treaties as were legally biding in all cases – to create a jurisdiction within the United States that existed outside of the auspice of the Constitution? Depending on how these and similar questions were answered, the consequences for American liberty were potentially terrifying and profound.

Cato V, Part XXII: The Same Causes, contd.

While the passage of the Militia Act by Congress in 1792 was, like Washington’s later invocation of the same, an entirely pragmatic reaction to an apparent crisis, it also represented a significant shift in American political philosophy. Militia, by and large, were thought to be preferable to a standing army by most Americans in the Revolutionary and post-Revolutionary eras. Unlike the Continental Army or the British Army – which were organized, directed, and paid by a central authority often located at some distance from the theater of action – militias were controlled by a combination of the state governments and the various local communities in which their members resided. This fact tended to make militias more trustworthy in the eyes of the average American citizen. In the late 18^th century, after all, most Americans still identified themselves with their state rather than with the nation as a whole and were far more likely to invest feelings of comfort and safety in representations of state power than in those of any manner of national administration. Expressions of military authority were very much included. Unlike a professional army officer, for example, whose orders were handed down to him by a potentially distant authority, and who quite probably possessed no attachment in particular to the region or community it was his nominal duty to protect, a militiaman was never supposed to operate beyond the confines – or outside of the political authority – of the state he called home. This was because militias were supposed to be defensive rather than offensive, amateur rather than professional.

This latter quality in particular – the amateur nature of the very concept of a militia – essentially embodies the other reason most Americans in the late 18^th century tended to distrust professional militaries. A professional soldier was someone whose livelihood more or less depended on his following the orders that were handed down by his superiors. Depending on his position he might perhaps possess sufficient freedom to raise his concerns or even express his dissatisfaction, but this leeway could only extend so far. If he wanted to remain in the military, and if he furthermore wanted to gain promotion – and all of the fame, glory, and respect that went with it – he would at some point have to make his peace with doing things that he didn’t necessarily agree with. For a community who had come to associate professional soldiery with tyrannical governments – as the inhabitants of the late 18^th century United States most definitely had – this manner of obedience was bound to be a source of concern. In the event, say, that the government of a given state objected to the terms of a piece of federal legislation and opted to resist the implementation of the same, what reason would a professional soldier in the employ of the federal government possibly have for being anything less than zealous in attempting to enforce the law in question? Failure to follow orders would almost certainly result in discipline, perhaps even dismissal. It might be somewhat distasteful, having to treat one’s fellow citizens as though they were an enemy population, but such is the nature of military life. Today it’s putting down insurrectionists in Massachusetts or New York, tomorrow it’s garrison duty in the Northwest Territory. One goes where one is sent, does what one is told.

A militia, by comparison, is rather the opposite of professional. Its members, far from being career soldiers whose way of life depends on their willingness to follow orders, are part-time defenders of the lives of livelihoods of the communities from which they are drawn. They are trained, of course, according to a reasonable standard of quality, and armed, and uniformed, and expected to assemble when mustered and obey the orders of state authorities. But when not in uniform, they are essentially indistinguishable from any other member of the locale that have been assigned to defend. In the context of the late 18^th century Unites States, this fact doubtless made the idea of a militia far less troubling to the average American than that of a standing army. A professional soldier, to their eyes, was a man defined by discipline, obedience, and the ability to take lives if called upon. His accordant malleability, while potentially useful, sets him apart from most of his fellow human beings, perhaps even to the point of making him an object of fear and disquietude. A militiaman, by contrast, was just another man. When not in arms he was a baker, a lawyer, a farmer, or a merchant. He serves because it is his duty, and because he understands the need to protect his family, his friends, and his community as well as he feels the need to protect himself. He does not enjoy military life, or seek respect by adhering to it, but makes what sacrifices are expected of him as best he can. He is not foreign, or frightening, or in any way untrustworthy.

While granting that the terms of the Militia Act of 1792 did not in itself transform the comforting and familiar American militiaman into the disquieting and unfamiliar professional soldier, that selfsame legislation – and the manner by which it was invoked in 1794 by the Washington Administration – did, in a very real sense, move the former substantially closer to the latter. The state militias were not altered in form or function, of course. They were still to be trained and organized at the direction of the states themselves, and their membership was still to be comprised of part-time soldiers called to arms only during an acute military emergency. What the terms of the relevant legislation did do, however, was allow the Executive Branch of the federal government – in cooperation with a single representative of the Judicial Branch – to both decide what constituted an acute military emergency and take control of the militias once such a decision had been made. The militias could not act as quickly as a standing army, having to muster before they could be deployed, and their training and equipment was bound to be inferior to those of a professional military. But their numbers, when combined, were bound to exceed those of a professional, peacetime army of the period. Consider, to that end, the following.

Pursuant to the invocation of the Militia Act by the Washington Administration in 1794, the force ultimately assembled numbered close to thirteen thousand. At the Battle of Saratoga (1777), one of the largest engagements of the entire Revolutionary War, the Continental Army counted some fifteen thousand men under arms by the time that the British surrendered. The Washington Administration’s ultimate response to the Whiskey Rebellion therefore constituted, not only the summoning of a military force under federal control that rivaled some of the largest armies fielded by the United States during the Revolutionary War, but it also represented the first time that such a force had been summoned on the initiative and at the command of a single individual in the short history of the American republic. Washington, it was true, had also been Commander-in-Chief of the Continental Army in 1777, and in that capacity had exercised a considerable degree of autonomy as to where the troops under his authority were sent. That said, he had also been under the authority of Congress, whose members were free to override, replace, or remove him at their pleasure. This was no longer the case in 1794. Having been elected by popular(ish) vote, Washington was the sole leader of an entire branch of the federal government possessed of almost complete autonomy – except where specified by the Constitution – from the oversight of either Congress or the federal courts. Congress maintained the sole responsibility for declaring war, of course, as well as for allocating the financial resources necessary for the United States to deploy whatever military forces happened to be in its service. But the President remained the Commander-in-Chief of those forces, be they professional or amateur, and was by no means required to consult with Congress before exercising his authority within that sphere.

   

There remained ambiguities, to be sure, as to how the President might actually take command of the state militias pursuant to the text of Article II, Section 2. It wasn’t clear, for example, how or why the Chief Executive might call the militias into federal service. Thankfully, the passage of the aforementioned Militia Act effectively answered most of these questions. Yes, the President did require the acquiescence of a Supreme Court Justice to call the state militias into federal serve, but that was all he required. Once this prerequisite was met, the Chief Executive was free to summon a potentially massive number of men under arms and direct them to whatever part of the country he felt the relevant crisis required. This would seem to have made the state militias a kind of “standing-army-in-waiting.” They were not career soldiers, of course, and were bound to lack the training and resources expected of a professional military force. Nonetheless, they represented a tremendous potential military resource in terms of their numbers and availability. And while it was doubtless true that militiamen from Pennsylvania might hesitate to use force against their fellow Pennsylvanians, militiamen from Virginia might not be so squeamish. The President, after all, was free to summon militia forces from anywhere in the country and to deploy them to anywhere in the country. Might he not thus seek to avoid potential difficulties by ensuring that only out-of-state militias were deployed to the crisis area in question? Was this not a perfectly sensible precaution?

The response of late 18^th century Americans to this expansion of the practical authority of the office of President was, in the main, somewhat ambiguous. While, as aforementioned, the dearth of militia volunteers in 1794 resulted in the implementation of a draft, which in turn led to riots in a number of urban centers, the Washington Administration was ultimately able to raise a force of some thirteen thousand men. And, upon deploying roughly half of those men to the purported crisis area in Western Pennsylvania, the assembled militia force did succeed in dispelling the tax resistors and their various supporters. Hardly any blood was shed in the process; militiamen acting under the direction of the federal government were not at any point required to engage in a significant exchange of fire with their fellow countrymen. But while in a different context this may have served to cast some doubt on the efficacy of the national government’s newfound military power, the actual outcome was substantially beneficial for the Washington Administration and its Federalist supporters. The national government, under Washington’s direction, had shown itself to be willing and able to deploy the resources at its disposal for the purpose of enforcing the law of the land. A call had gone out, men had been mustered, and a force had been deployed to the trouble spot. Not only was order thereafter swiftly restored, but the entire policy program of the nascent Federalist faction received a significant popular boost.

Granted, the Whiskey Tax itself remained notoriously difficult to collect, to the point that both the Washington Administration and its immediate successor ceased to devote much effort to its enforcement. All the same, the Federalist candidate, sitting Vice-President John Adams (1735-1826), defeated Democratic-Republican stalwart Thomas Jefferson in the next presidential election in 1796, and Federalists retained strong majorities in both the House and the Senate. Notwithstanding the popular discontent that continued to linger in Western Pennsylvania, the demonstrations that had accompanied the aforementioned militia draft, and the ongoing antipathy many Americans continued to feel towards the concept of a centralized government possessed of substantial military resources, the expansion of the practical power of the Executive Branch that President Washington had overseen was broadly accepted by the American people. Not everyone was particularly sanguine, of course, with the resulting enhancement of federal authority. Over the next several years, pamphlets were printed, speeches were delivered, and political societies were organized, all for the purpose of denouncing the actions of the Washington Administration and rallying support for a Democratic-Republican alternative. And in time, owing both to further discontent stirred up the Jay Treaty debate and the actions of the Adams Administration during an undeclared naval conflict between the United States and Revolutionary France – not the least of which was the passage by Congress of the notorious Alien and Sedition Acts (1798) – these efforts did bear fruit. But in the immediate, though the government of the United States of America had claimed for itself more power than either the Framers of the Constitution or its supporters in the state ratifying conventions  had ever believed would be the case – with the probable exception of Alexander Hamilton – public opinion was generally quiescent. A major backlash was slow in coming and arrived ultimately in the form of a democratic revolution rather than an armed one.

The sense of triumph which the Washington Administration doubtless derived from this outcome is arguably embodied in the aforementioned explanation which Washington himself offered concerning the pardons he extended to the two Whiskey rebels sentenced to death. “Though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested,” he declared in his seventh State of the Union Address,

Yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

Consider, for a moment, Washington’s choice of words. He did not decry the very thought of sentencing two of his countrymen to death for resisting a law which they felt was unjust. Nor did he seek to remind his fellow Americans that resistance to a government perceived as tyrannical and unrepresentative was one of the fundamental principles upon which the American republic had only recently been founded. Rather, in a manner which his critics among the Democratic-Republicans doubtless compared to that of a monarch who seeks to be viewed as equally firm and merciful, he asserted his belief that the maintenance of the public good required a government to promote “moderation and tenderness” as well as dignity and safety. His pardon of the otherwise doomed rebels, then, far from being in recognition of the fact that they had done nothing so abhorrent to American sensibilities as to warrant their deaths, was instead a gesture intended to project a sense of magnanimity on the part of the national government for the purpose of engendering the respect and affection of the American people. 

 

Washington’s expression of this sentiment did not qualify him for the title of tyrant, of course, or otherwise indicate that he had anything less than the wellbeing of his countrymen in mind. But the tone thereof arguably did represent a new phase in the history of executive power in the American republic. The President of the United States evidently no longer needed to justify the use of coercive authority beyond what the law explicitly required. Recall, for a moment, the circumstances of the Anglo-American crisis of the 1760s and 1770s. Not only did the representatives of the various colonies/states assembled in Congress demand a rigorous explanation from Parliament and the Crown as to their collective authorization of military force in America, but they also went to significant lengths to justify their own actions – up to and including taking up arms – by way of appeals to political and moral philosophy. It wasn’t enough for successive British governments to explain to their nominal constituents in America that the presence of military personnel in the colonies was entirely in keeping with contemporary British law. Nor, for that matter, did the colonists seem to believe that it would have been sufficient to simply take up arms against Parliament and the Crown without first establishing why such a course of action had become necessary. In the 1760s and 1770s, it seemed, Americans required the use of military force to be grounded upon a thorough and convincing analysis of commonly understood moral and legal principles. This may have constituted an extraordinary expectation, but it appeared at that time that most Americans considered the deployment of armed soldiery among a civilian population to be an extraordinary circumstance.

This attitude seemed to have softened considerably by the middle of the 1790s. There were certainly objections raised to Washington’s invocation of the Militia Act in response to the steady escalation of the Whiskey Rebellion over the course of 1792, 1793, and 1794. Many people did not much like the idea that American militiamen were going to be deployed on the orders of an increasingly centralized government for the purpose of arresting their fellow citizens and enforcing obedience to what many of them considered to be a thoroughly unjust law. But while the aforementioned draft riots constituted perhaps the most severe expression of this sentiment, the plans devised by the Washington Administration to meet the supposed challenge posed by the Whiskey Tax rebels nonetheless proceeded apace. Indeed, it is noteworthy that, determined to undertake an extraordinary – or at the very least wholly unprecedented – exercise of federal power, President Washington did not seem to feel the need to make any extraordinary gestures. He did not address the various members of Congress for the purpose of explaining why he felt it necessary to federalize the state militias and send them to confront the insurrectionists in Pennsylvania, or solicit their advice, or request their approval. Nor did he meet and confer with the governors of the states whose citizens he was preparing to call into federal service. The law and the Constitution required only that he request the authorization of a single Supreme Court Justice, which he quickly sought and received. The only additional action which he took was to issue a proclamation on August 7^th, 1794, the reasoning deployed therein being somewhat less than morally rigorous.

Rather than attempt to explain to his countrymen why it was that the Whiskey Tax itself was so necessary to the public good as to justify the use of military force to see it collected, Washington instead seemed intent on establishing it as a principle that disregard for the law – any law – was cause enough for coercive action. To that end, having first described the insurrectionists in Western Pennsylvania as, “Armed Banditti” – which is to say, little better than outlaws, thieves, or brigands – he went on to justify the deployment of the various state militias by asserting that, “Many persons in the said western parts of Pennsylvania have at length been hardy enough to perpetrate acts which I am advised amount to treason, being overt acts of levying war against the United States [.]” Treason, it bears remembering, remains among the most serious crimes a person can be accused of committing under the laws of the United States, and is one of the few explicitly defined in the text of the Constitution. As stated in Article III, Section 3, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” By essentially invoking this definition, Washington arguably dismissed any further need to justify the use of coercive military force. The commission of treason was reason enough to bring to bear every resource at the disposal of the government so offended.

The text which followed this rather startling accusation did not go much deeper into the social or moral priorities which the proper enforcement of the Whiskey Tax was supposed to fulfill. Indeed, the tax itself hardly seemed to factor into Washington’s thinking at all. Rather, it was the mere fact that the law was being broken in so brazen and widespread a manner that he felt it necessary to deploy the military resources of various states. Having denigrated, at length, the intentions of those, “Whose industry to excite resistance has increased with every appearance of a disposition among the people to relax in their opposition and to acquiesce in the laws [,]” he accordingly went on to declare of the actions he was preparing to take that,

The essential interests of the Union demand it, that the very existence of Government and the fundamental principles of social order are materially involved in the issue, and that the patriotism and firmness of all good Citizens are seriously called upon, as occasion may require, to aid in the effectual suppression of so fatal a Spirit.

The “patriotism and firmness” of those residents of Western Pennsylvania whose lives and livelihoods had been negatively impacted by the Whiskey Tax, and who chose to seek relief through organized resistance, were evidently of no consequence, perhaps because their disobedience of the law meant that they were no longer, “Good Citizens [.]” What seemed to matter, on the contrary, were abstract concepts like, “Social order,” “The essential interests of the Union,” and, “The very existence of Government [.]” What the Washington Administration hoped to achieve by enforcing the Whiskey Tax, or what the supposed rebels hoped to achieve by resisting it, was evidently of little importance. The law had been broken, and that in itself justified treating the offenders – until such time as “moderation and tenderness” were called for, of course – as enemies of the American republic.

That Washington felt compelled to approach the Whiskey Rebellion in such a manner, and the fact that his chosen approach was broadly accepted, augured favorably for the office of President and the authority that it could claim to possess. Above and beyond the fact that the Federalists appeared to have successfully demonstrated both the need for a active, powerful central government and the efficacy thereof, the stage had effectively been set for subsequent occupants of the office of President to continue expanding the prerogatives at their disposal in the foreign and domestic spheres alike. Not only had the Washington Administration established the primacy of the American chief executive in matters of diplomacy and widened the scope of action available to the President in times of national crisis as matters of legal and political process, but they had also secured the far more valuable commodity that was widespread social sanction. The American people had seen the first President of the United States assert himself in a number of ways far beyond what the plain text of the Constitution would otherwise have indicated was possible. Did they cry foul? Yes, some of them did. Did they denounce the President as a tyrant? Again, yes, some of them did. But what they didn’t do was channel their discontent – as they had but twenty years previous – into an armed campaign of resistance and revolution. Rather, in general, they responded with approval. Notwithstanding the manner in which many of them initially thought the office of President was supposed to function, Washington defined the manner in which it was going to function from that point forward, and the American people seemed to alter their expectations accordingly. Even self-confessed members of the Democratic-Republican faction – who did absolutely consider Washington’s actions to be tantamount to tyranny – refrained from calling for the violent overthrow of the reigning Federalist hegemony. Rather, seeming to at least partly accept the status quo that Washington had established, they instead dedicated themselves to defeating their opponents at the polls. If subsequent Presidents of the United States of America were going to be as powerful as Washington had shown himself in practice, then it was the responsibility of the Democratic-Republicans to ensure that only someone who could be trusted to abstain from abusing their authority – i.e. a Democratic-Republican – ever held the office again.

Cato V, Part XXI: The Same Causes, contd.

The outcome of the so-called “Whiskey Rebellion” in 1794 arguably resulted in an assumption of presidential authority on the part of George Washington similar to that which would later emerge from the debate surrounding the Jay Treaty in 1795. But while the implications of the incident in question were quite substantial, the inciting circumstances were comparatively mundane. Seeking to pay down the national debt that had recently been consolidated by way of an assumption of existing state debts – as mandated by the terms of the Funding Act of 1790 – Treasury Secretary Alexander Hamilton worked with Congress during the first half of 1791 to levy a series of taxes on domestic products for the purpose of raising a federal revenue. The first of these excises – a test balloon, of sorts – was fixed upon the production of distilled spirits, thought to be an acceptable target for taxation since the product in question was deemed a luxury. The resulting bill became law in March 1791, with President Washington appointing the necessary officials and assigning them to revenue districts the following November. But while the “Whiskey Tax,” as it became known, had been uncontroversial enough to achieve affirmative votes in both the House and the Senate, the people most likely to be affected by its provisions quickly showed themselves to be nowhere near as sanguine at the prospect of having to pay it.

In Western Pennsylvania, it turned out, the operation of small stills was a pervasive means by which grain farmers supplemented their often-meagre incomes. This was particularly true in the region that lay beyond the Appalachian Mountains, where excess grain could be turned into whiskey that was much easier to transport to market in the East. In addition, resulting from pervasive cash shortages, whiskey often served as a means of exchange. Indeed, some people near the bottom of the regional economic hierarchy were even paid in whiskey for their labor. A tariff on distilled spirits in this part of the country would accordingly have amounted to a restriction on agricultural productivity, a damper on local economic competitiveness, and even a form of income tax. The result of its adoption, unsurprisingly, was popular discontent. Angered by what they perceived to be the federal government’s preferential treatment of large, industrial distillers located in the East – the substantial incomes of which permitted them to pay a flat tax of six cents per gallon rather than the piecemeal nine cents per gallon that smaller private distillers had no choice but to pay – and already exasperated by the Washington Administration’s outwardly anemic response to frequent attacks by local native populations, small-scale farmers joined with laborers and local merchants in resisting the efforts of federal revenue officials. Tax collectors were threatened and driven off, people who provided them food or lodging were harassed or even beaten, and the offending tax itself was roundly denounced. When these actions, alongside formal petitions seeking the repeal of the excise, failed to garner a response from the federal government, the tax resistors took the next logical step. Beginning in July of 1791, they began the process of organizing.

As assembly of delegates from the surrounding counties first met in Pittsburgh in September of 1791. Doubtless due to the influence of the moderates yet in attendance, plans for armed resistance were laid aside and further petitions were drafted requesting aid and relief from both the Pennsylvania Assembly and the House of Representatives. But while, pursuant to these requests, some degree of respite was granted in the early spring of 1792 – chiefly in the form of a one-cent reduction in the cost per gallon – this outcome wholly failed to mollify the majority of the affected population. Non-violent petitions consequently gave way to violent resistance over the course of the next several months, with tax collectors and court officials being subjected to the Revolution-era punishment of tarring and feathering as the offended populations began to complain that their plight was no different than that of the American colonists who had refused to pay the taxes levied by Parliament in the 1760s and 1770s. A second convention summoned in August of 1792 – also in Pittsburgh – accordingly dispensed with talk of moderation and conciliation, turning instead to the prospect of armed resistance. When news of these developments reached the Washington Administration, the reaction fell somewhere between concern and embarrassment. Not only were the President and his advisors sensitive of the need for the newly-minted federal government to offer a firm response to any threats to its authority – lest it begin to lose the confidence of the American people – but it was quite naturally a source of mortification that the rebellion in question was occurring in the same state – i.e. Pennsylvania – where said government was headquartered. Eager, as ever, to project firmness and resolve, Treasury Secretary Hamilton penned a proclamation for Washington’s signature which denounced non-payment of federal taxes and enjoined both court officials and private citizens to aid in the enforcement of federal laws. Washington signed the document on September 15, 1792, upon which it was widely printed in broadsheet form and in a number of prominent newspapers.

Notwithstanding this assertion of federal authority, the tax resistors continued to harass federal officials, threatened those who offered them aid, and resolutely refused to pay the offending tax right through to the summer of 1794. It was at this point that events rather quickly came to a head. Having served a round of recently-issued federal writs against a number of local distillers who had persistently refused to pay the excise, local planter and tax official John Neville (1731-1803) found his home surrounded on the night of July 16^th by a force of some thirty local militiamen. Over the course of the next twenty-four hours, Neville fired several times at his harassers – wounding at least one of them – and was reinforced by a small contingent of US Army soldiers dispatched from Pittsburgh while the militia force swelled to nearly six hundred men in total, all under the command of Revolutionary War veteran James McFarlane. Following a round of negotiations resulting in the safe evacuation of Neville’s family – and the covert departure of Neville himself – another attempt by McFarlane to discuss terms resulted in his being fatally shot by the defenders, the effect of which was the final capture of the property by the militiamen. McFarlane’s funeral, held on July 18^th, subsequently served to rally the majority of the remaining moderates around a course of resistance to federal power. At Braddock’s Field, just east of Pittsburgh, some seven thousand people – many of whom did not own distilleries but had harbored economic grievances against the state and federal governments and eagerly sought an outlet for their frustrations – gathered on August 1^st to discuss possible plans of action. The French Revolution was spoken of favorably, with some even calling for the guillotine to be brough to America. Many called for a march on Pittsburgh, and for the town to be looted and razed. Some even advocated for the surrounding counties to declare their independence from the United States and seek aid from Britain or Spain.

Now confronting by what appeared to be an armed insurrection in Western Pennsylvania, President Washington finally gave way to the urging of certain members of his cabinet – Hamilton chief among them – and authorized the use of military force. Specifically, he called into federal service a force of militia drawn from Pennsylvania, Maryland, Virginia, and New Jersey pursuant to the terms of Article II, Section 2 of the Constitution – i.e. “The President shall be Commander in Chief […] of the Militia of the several States, when called into the actual Service of the United States [.]” The Militia Act of 1792 had helpfully clarified the nature of this authority by stating that the President retained the right to federalize the state militias,

Whenever the laws of the United States shall be opposed or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act [.]

All that was required for the federal government to proceed was the certification of a Supreme Court Justice that the crisis in question was truly beyond the ability of local law enforcement to contain. Justice James Wilson (1742-1798) delivered exactly that on August 4^th, 1794, whereupon President Washington issued a proclamation declaring his intention to call out the state militias to suppress the ongoing rebellion in Pennsylvania. Amidst a dearth of volunteers, the deployment of a draft, and a series of anti-draft riots in several of the affected states, a force of nearly thirteen thousand was raised, with roughly half dispatched to Carlisle, Pennsylvania before proceeding on to Pittsburgh.

            While this selfsame militia force did meet with some small degree of resistance during its westward march in the late summer and early autumn of 1794 – several civilians in Carlisle were killed resisting arrest, another was mortally wounded during an altercation with a militiaman – the final confrontation anticipated by some and dreaded by others never actually materialized. Washington travelled to the region personally to both review the assembled militia and confer with local representatives but departed before the force reached the affected region. Placed under the command of Revolutionary War veterans Henry Lee III (1756-1818) and Daniel Morgan (1736-1802), the federalized troops finally entered Western Pennsylvania in October 1794, at which point the incipient rebellion they had been sent to confront more or less evaporated. The leaders of the pro-resistance faction almost all fled westward into the Northwest Territory or took refuge in the mountains. Of those that remained, only a handful – twenty-four in total – were ultimately arrested and brought back to Philadelphia for trial. These men arrived in the American capital on Christmas Day amidst a parade by the militia accompanied by the ringing of church bells and the firing of cannons. In the end, only ten men were tried for treason, and only two were convicted and sentenced to death. His point having been made – namely that the federal government was not to be defied in the enforcement of the laws that it devised – Washington quickly moved to pardon them both. Seeking to explain his decision to be merciful, the President declared in his seventh and penultimate State of the Union Address one year later that,

Though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

Though the federal government had thus demonstrated its willingness to enforce the terms of its own legislation, the Whiskey Tax remained only sparsely collected for the remainder of the Washington Administration and into the Adams Administration. It was finally repealed in 1802, pursuant to the guidance of President Jefferson.

            As with the events which spiraled out of the Jay Treaty debate in 1795, the circumstances and the outcome of the Whiskey Rebellion in 1794 served to demonstrate the inclination of George Washington as President of the United States to interpret certain of the more equivocal aspects of the Constitution as lending his office specific and significant practical power. The Constitution, remember, only stated that, “The President shall be Commander in Chief […] of the Militia of the several States, when called into the actual Service of the United States [.]” It was accordingly left ambiguous exactly when this might be the case, or how such a transfer of authority might function, or whether any other branches of the federal or state governments might exercise some degree of oversight. The aforementioned Militia Act of 1792 – passed, it bears mentioning, by a Federalist majority in Congress – cleared up these vagaries by laying out the circumstances within which the President could legally assume command of the state militias, but it nonetheless remained from some occupant of that selfsame office to assert the concomitant authority according to their own rationale. This, of course, is exactly what Washington did. Responding to what appeared to be an armed rebellion on the American republic’s western frontier – and urged on at length by advisors like Alexander Hamilton – President Washington determined that the situation warranted calling the state militias into federal service and sending them to enforce the laws that were then being flouted. The result was not particularly tidy – there were deaths, as aforementioned, and draft riots, and pitiful scenes of American militiamen leading their fellow citizens through the streets of the capital in irons – but it was at the very least outwardly successful. Washington had ensured that the federal government would not be trifled with, and that the kinds of post-Revolutionary agitations that had led to the likes of Shays Rebellion (1786) would no longer be tolerated.

            In an era following the American Civil War (1861-1865) – during which time the Lincoln Administration mobilized hundreds of thousands of troops and oversaw the slaughter of over half a million Americans, all with the stated intent of enforcing federal law – Washington’s almost entirely bloodless deployment of a mere thirteen thousand militiamen to Western Pennsylvania may not seem like much of an assertion of power. Notwithstanding the relatively infinitesimal number of casualties involved, however, it very much was. Washington may not have overseen the destruction of thousands of American lives in the name of law and order, but he did make a number of assumptions about that nature of the power at his disposal as President that had serious implications for the future of the American republic. Consider, by way of example, the circumstances which resulted in the passage of the aforementioned Militia Act. Far from seeking to enable the President of the United States to respond to potential civil disturbances, the intended purpose of the legislation in question was to empower the federal government to bring the military resources of the various states to bear in the event that the native peoples then successfully fighting off American settlement in the Great Lakes region ever decided to go on the offensive. It was only a year prior, in 1791, that General Arthur St. Clair (1737-1818) had led a contingent of the much-downsized American Army to one of the worst defeats in its history at the Battle of the Wabash in present-day Ohio, and the Washington Administration was in something of a panic to prevent the situation on the frontier from deteriorating any further. The result, in addition to a dramatic enlargement of the peace-time military of the United States of America – the final result of which was the defeat of the relevant native confederacy in 1794 and the seizure, by treaty, of most of what would become the state of Ohio – was the aforementioned legal clarification of the authority of the President to summon and command the various state militias.

            Bearing these circumstances in mind, Washington’s invocation of the Militia Act in response to the events of the Whiskey Rebellion in 1794 constituted something other than what the law was designed and intended to accomplish. The threat (presumably) facing the United States at the time of the Militia Act’s passage was a confederacy of native tribes empowered by their victory over Arthur St. Clair to potentially invade settled areas of Pennsylvania and Virginia. The threat that led to its actual invocation was a campaign of civil resistance on the part of a group of disgruntled residents of Western Pennsylvania who felt as though their economic and political rights were being consistently ignored. The resulting leap of logic was both pragmatic and precedential. Desirous of some means to confront what appeared to be an increasingly organized insurrection on the Western frontier, Washington and his Federalist advisors seized upon the one passage of the Constitution and the one piece of federal legislation which between them seemed to offer a viable solution. Most assuredly, neither the relevant section of Article II nor the Militia Act of 1792 were intended by their authors to enable the President of the United States to draft the state militias into federal service for the purpose of enforcing federal law. Then again, there was nothing in either of the selfsame texts explicitly prohibiting exactly that usage. What it came down to, in the end, was a question of interpretation. Unsurprisingly, the Washington Administration opted to read the law literally rather than adhere to some uncodified understanding of how and why a given power was supposed to be exercised. A looming crisis was at hand, and it doubtless seemed to matter very little to the likes of Washington and his cabinet that some of the tools at their disposal were intended for other uses.

This outcome is made especially significant when one considers the attitude broadly held by the members of the Founding Generation towards the very concept of a standing army. Central to many of the petitions issued by various individuals and organizations in the Thirteen Colonies during the 1760s and 1770s, after all, was the assertion that Britain’s ongoing deployment of professional troops in its American possessions represented an incipient threat to American liberty. As many of these remonstrances pointed out, the English Bill of Rights (1689) – one of the cornerstones of contemporary British constitutional law – stated explicitly that, “The raising or keeping [of] a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law [.]” Parliament may have approved the relevant distribution of British soldiers in America, but the legislatures of the various colonies had not. Britain’s actions thus constituted a violation of the spirit of the Bill of Rights, if not the letter. No laws had been broken, but the original purpose of the law had been flagrantly ignored. A free people should not have had to live in fear of armed men residing in their midst whose loyalty was owed to some distant government rather than to their fellow citizens. Successive British governments ignored these complaints, of course, eager as they were to both maintain law and order in America amidst their ongoing attempts to levy unpopular taxes and to continue to employ the sons, brothers, nephews, and cousins of influential families. Consequent to this obstinance, and the resulting association in the American popular imagination between standing armies and tyrannical governments, many people in the United States continued to view the concept of a peacetime standing army with acute and abiding suspicion even decades after the end of the Revolutionary War.

The effects of this attitude on American foreign and domestic policy during the immediate post-Revolutionary era could at times be rather severe. Eager to live up to the principles by which it had justified its resistance to British authority and ultimately prosecuted a war for independence – and keen, also, to cut as many costs as possible in light of the sizeable debts it had accrued in the process – the Continental Congress set about downsizing the army it had first raised in 1775 almost as soon as peace with Britain was finalized in 1783. From a high of eighty thousand men, the Continental Army was reduced in 1784 to a bare of seven hundred divided between a series of garrisons on the Western frontier and a permanent artillery contingent at West Point, New York. But while this course of action was certainly both economical and philosophically consistent – placing what little remained of the American republic’s peacetime military at a significant remove from most of the settled population – it also proved to be more than a little problematic. On the one hand, the thousands of officers and enlisted men discharged as a result of the almost complete liquidation of the American armed forces didn’t just disappear. Not only did these men now need to seek new employment, thus exerting pressure on the already fragile post-war American economy, but the need to pay the back wages which they were owed became an ongoing challenge for both the anemic Confederation government and that which was later erected under the terms of the Constitution. Some of these former soldiers became destitute, resorted to crime, or became itinerant laborers. Others – particularly the farmers among them whose livelihoods suffered as a result of the sluggish economy – fixed their resentment on the political status quo and began to organize politically. The aforementioned Shays Rebellion (1786), during which farmers in Western Massachusetts led by Continental Army veteran Daniel Shays (1747-1825) attempted to overthrow the state government in protest over heavy-handed tax policies, was one such outcome.

And on the other hand, there was the rapidly apparent fact that the United States of American did sometimes need more than just a token army. The terms of the Treaty of Paris (1783) may have legally ceded to the United States a vast swath of territory in the Great Lakes region formerly allocated by British authorities to the area’s various native inhabitants, but attempts to actually settle the same between the years 1785 and 1795 effectively proved that such a massive transfer of sovereignty was more easily said than done. The garrisons stationed in the newly-established Northwest Territory pursuant to the aforementioned plan by Congress to downsize the American military after the end of the Revolutionary War very quickly showed themselves to be completely inadequate to the task of either protecting existing American settlements or enlarging the land area under practical American jurisdiction. Settlers were killed, communities destroyed, and the official response was anemic at best. In 1790, General Josiah Harmar (1753-1813) suffered a series of defeats in engagements between his force of regular and militia troops and the various war parties of the Western Confederacy. The following year, the Governor of the Northwest Territory – the aforementioned Arthur St. Clair – led a second major expedition to an even larger defeat, with over six hundred of his one thousand-strong force killed and some two hundred and sixty wounded. This understandably sent the Washington Administration into something of a panic and prompted the passage of the aforementioned Militia Act in the spring of 1792. In the event that the newly-enlarged professional army, which Congress had also authorized, either took too long to recruit, train, and deploy or else failed in its duties once it was deployed, the President would thereafter retain the authority to call the state militias into federal service upon the certification of a duly-informed Supreme Court Justice.